Bombay High Court
Bhupesh Sevantilal Shah vs The State Of Maharashtra on 8 December, 2021
Bench: Nitin W. Sambre
910.2939.21 ABA.doc
ISM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 2939 OF 2021
BHUPESH SEVANTILAL SHAH ....APPLICANT
V/s.
THE STATE OF MAHARASHTRA .....RESPONDENT
WITH
INTERIM APPLICATION ST NO. 18667 OF 2021
IN
ANTICIPATORY BAIL APPLICATION NO. 2939 OF 2021
KUNAL NARENDRA GANDHI ....APPLICANT
IN THE MATTER BETWEEN
BHUPESH SEVANTILAL SHAH ....APPLICANT
V/s.
THE STATE OF MAHARASHTRA .....RESPONDENT
Mr. Niranjan Mundargi a/w Mr. Jatin P. Shah i/b Mr. Sahil Mahajan
for the applicant
Ms. A. A. Takalkar APP for the State
Mr. Aabad H. Ponda, Senior Advocate i/b Jugal J. Kanani for
intervener
Mr. Avinash Shelke, API, Tardeo Police Station
CORAM : NITIN W. SAMBRE, J.
DATE: DECEMBER 8, 2021.
910.2939.21 ABA.doc
P.C.:
1] Applicant is seeking pre-arrest bail in C.R. No. 571/2021
registered with Tardeo Police Station for Offences punishable under
Sections 406, 465, 468, 471, 511 of the Indian Penal Code.
2] Offence alleged against the applicant is that of misuse of 16
cheques which are claimed to have been issued on 17/12/2020 by
forging the signature of complainant.
3] Case of the prosecution is, aforesaid cheques were issued way
back in 2016 when father of the complainant Kunal namely Narendra
was also looking after the affairs of the firm. It is claimed that all the
liabilities against the said cheques was already satisfied. Narendra
expired on 10/07/2019 and applicant forged signature of Kunal on
these cheques, presented for encashment and were dishonoured on
23/12/2020. Claim of the prosecution is;
(a) Cheuqes issued in 2016 are sought to be misused
by forging signature of the complainant;
(b) There is no outstanding liability as for the first
910.2939.21 ABA.doc
time, signature of the complainant on the cheque is
recently discovered upon inspection of the same and;
(c) The cheque-book was issued by Dena Bank was
merged with Bank of Baroda on 31/03/2019 and post
death of joint account holder Narendra and merger,
cheques were presented which prima facie demonstrates
forgery and cheating.
4] In the aforesaid background, the contentions of Mr. Mundargi,
learned counsel for the applicant while trying to make out a case for
bail are, that the complainant has changed his version from time to
time as to cause for issuance of cheques and denial of liability. He
has placed reliance on e-mails exchanged between the parties, reply
to the notice issued under Section 138 of Negotiable Instruments Act,
various police complaints lodged by the complainant prior to the one
of which cognizance is taken. So as to establish the aforesaid claim,
he would claim that issuance of PDCs is not in dispute and the plea
that is raised is part of defence of the complainant in Negotiable
Instruments Act proceedings. It is further claimed that at the behest
of applicant, prosecution is initiated against the complainant and
complainant was unsuccessfully contested quashing proceedings
910.2939.21 ABA.doc
before this Court. Apart from above, he has invited my attention to
debit notes issued upto 2020, tax deducted at source etc. As such,
according to him, the case put forth by the prosecution against him
is by way of afterthought, to cover up the liability which the
complainant owes to clear under the Negotiable Instruments Act
proceedings.
5] Learned APP assisted by Mr. Ponda, learned senior counsel
appearing for the complainant oppose the bail. Mr. Ponda would
invite my attention to the factual matrix of the case and while
explaining the case which is claimed to be at variance as has been
claimed by counsel for the applicant would urge that it is recently
after inspection of cheques which contains forged signature of
complainant offence is registered. He would urge that if the signature
on the 16 disputed cheques if compared with that of early copies of
cheques which were in the possession of the complainant, forgery of
signature can be prima facie inferred. That being so, variance in the
complaints or the conduct of the complainant may not be looked into
as same can be gone into at the stage of trial. He has drawn support
from the judgment of this Court in the matters of Rameshwar V.
910.2939.21 ABA.doc
State, thr PSO1 and order of this Court in Digambar s/o. Rambhau
Jadhavar Vs. The State of Maharashtra and Anr 2 so as to
substantiate his aforesaid contention. Mr. Ponda would also like to
rely on ledger entries, signatures on the cheque, so as to claim that
fraud played by the applicant is apparent on its face which warrants
his custodial interrogation.
6] Learned APP would urge that applicant has not cooperated with
the investigating agency as ledger accounts and such other
documents which were relevant for carrying out effective investigation
are not provided.
7] It is further claimed that whatever documents are available
have been verified and it could be inferred that liability as has been
claimed by the applicant against the complainant was very much
satisfied and forgery could be inferred at its face value.
8] Considered submissions.
1 2021 SCC OnLine Bom 3543
2 Criminal Application No. 2255 of 2013, 2256 of 2013.
910.2939.21 ABA.doc
9] At this stage, it is not in dispute that parties are at loggerheads
i.e. complainant and applicant. There appears to be business
relations and differences on the issue of payment due and paid. It is
admitted position on record that at the behest of applicant,
complainant is facing proceedings under the Negotiable Instruments
Act and in reply to notice under Section 138 of N.I. Act so also
complaints lodged with the Investigating Officer prior in point of time
of the complaint in question speaks of stand taken at variance
against the applicant.
10] Though rival claims are made on the issue of outstanding dues
by producing on record copies of ledger, however, learned APP in
response to the query submits that said original ledgers, if so
produced by the applicant, will be duly verified and investigated into.
11] In the aforesaid background, it will be appropriate in my
opinion to grant an opportunity to the applicant, at whose behest two
proceedings viz. proceedings under Negotiable Instruments Act and
criminal prosecution against the complainant is pending before
competent court, to appear before the Investigating Officer and
910.2939.21 ABA.doc
cooperate in the matter.
(i) In the event of arrest of applicant in C.R. No.
571/2021 registered with Tardeo Police Station for
Offences punishable under Sections 406, 465, 468, 471,
511 of the Indian Penal Cod, he shall be released on bail
on furnishing P.R. bond in the sum of Rs. 50,000/-
with one or more sureties in the like amount.
(ii) Applicant shall neither influence prosecution
witnesses in any manner nor tamper with evidence.
(iii) Applicant shall attend the Investigating Officer from
13/12/2021 to 23/12/2021 between 10.00 a.m. to 2.00
p.m. and thereafter as and when directed.
(iv) Applicant shall produce original records as called
by the Investigating Officer.
(v) Needless to clarify that such original record which
is part of court proceedings viz. Negotiable Instruments
Act proceedings and criminal prosecution at the behest
of the applicant can be accordingly informed to
910.2939.21 ABA.doc
Investigating Officer to facilitate him to procure copies of
such record for effective investigation.
(vi) Applicant shall not in any way try to establish
contact with the complainant during the pendency of
present application and if so required, let such
communication be exchanged through their respective
counsel.
12] Matter to come up for consideration on 24/01/2022.
[NITIN W. SAMBRE, J.]
IRESH
SIDDHARAM
MASHAL
Digitally signed
by IRESH
SIDDHARAM
MASHAL
Date: 2021.12.10
16:38:42 +0530
